By: Kendra Paul and Alnisa Bell

We recently described here how the culmination of the Equal Employment Opportunity Commission’s (“EEOC”) aggressive enforcement of its April 25, 2012 Enforcement Guidance and numerous state and local ban-the-box laws has created a new criminal background check minefield protecting criminals at the expense of employers.  But how are employers supposed to respond?

Employers, Congress, State Legislatures, Attorneys General, And Courts All Speak Out:

The EEOC steamrolled its guidance through the administrative process without providing employers the opportunity to publicly comment.  Employers argue that they have legitimate reasons for conducting criminal background checks that are being ignored.  For example, some federal and state laws require criminal background checks for specific occupations.  And, criminal background checks may help prevent negligent hiring or retention lawsuits.  The conflict between the EEOC guidance and these other laws puts employers is a “sued if they do, sued if they don’t” situation.  Until this area of the law settles, employers are wise to revise their practices to mitigate their risks so they aren’t “low-hanging fruit.”

Congress admonished the EEOC for unilaterally implementing its guidance and the Senate Appropriations Committee is still waiting for the EEOC to outline “the steps it has taken to alleviate confusion about the new guidance.”  And the United States Commission on Civil Rights will likely approve and adopt its report to the President and Congress titled Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy.  This report is expected to further highlight the EEOC’s failure to provide employers with sufficient guidance on how to follow its guidance.

States are also responding to the EEOC guidance. 

Some states recognize that employers are in a no-win situation and are trying indirectly to minimize the burden on employers for complying with the EEOC guidance.  In Texas, for example, the state legislature recently passed House Bill 1188.  The new law states that a “cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.”  The new law takes effect on September 1, 2013. 

Other states are taking a more direct approach and expect the EEOC to correct the problems it has created.  Attorneys General from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia are protesting that the EEOC’s enforcement of its guidance in the BMW and Dollar General cases has gone too far and represents a “misguided and quintessential example of gross federal overreach.”  The Attorneys General caution that conducting individualized assessments could have a reverse effect and lead to “more opportunity for racial discrimination than the nondiscretionary screening processes allegedly used by the companies.” 

Federal district courts are also starting to voice their concerns about the EEOC guidance and the recent BMW and Dollar General cases. 

Judge Roger Titus of the U.S. District Court for the District of Maryland specifically mentioned these two cases in his dismissal of a nationwide lawsuit brought by the EEOC against Freeman, Inc. (alleging a discriminatory impact on African American and Hispanic men based on the company’s use of criminal and credit background checks in the hiring process). 

As discussed here, the case was dismissed because the EEOC didn’t meet its evidentiary burden to show that the company’s policies had a discriminatory impact.  But the Court did state that “[c]areful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States.”  The Court also pointed out that “even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”

How Can Employers Protect Themselves In This Criminal Background Check Minefield?  

Private sector employers can’t afford to ignore this issue.  The EEOC guidance applies on a national level and the ban-the-box laws vary in their reach—some apply where the company is located and others apply where the applicant or employee is located.  While employers’ hiring processes understandably vary due to the nature of their businesses, employers should consider implementing the following best practices in response to this ever-changing criminal background check landscape:

• Revise your employment applications and interview policies to ensure that any questions regarding an applicant’s criminal history are legally compliant with the EEOC guidance and applicable state or local laws.  Know what can be asked about conviction/non-conviction data and when it can be asked.
• Consider only asking about what you care about—that which is job related.
• Consider not asking about criminal history information until after you conduct an initial interview or make a conditional offer of employment.  This reduces the size of any potential group of claimants and may take you off f the EEOC’s radar screen.
• Train hiring/recruiting managers and HR professionals on these laws and your revised policies.
• Ensure your background screening providers are providing you with criminal history information you can legally use.
• Review your job descriptions and determine whether a criminal background check is job related and necessary for each position.  If it is, when considering an applicant’s criminal history information, also consider: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; (3) the nature of the job held or sought; and (4) the EEOC’s individualized assessment factors.
• Determine how you will allow applicants and employees to explain special circumstances surrounding their conviction criminal history information so you can conduct an individualized assessment.

By implementing these best practices, employers can navigate through the criminal background check minefield and hopefully not be the next target.